Why Security Council Resolution 2334 Matters a Lot More

Why Security Council Resolution 2334 Matters a
Lot More Than We Think

by Mark LeVine

Those
who long ago succumbed to cynicism and hopelessness when it
comes to the Israeli-Palestinian conflict can find many
reasons to discount the importance of Security Council
Resolution 2334, passed unanimously (14-0 with the U.S. as
the only abstention) on December 23. It is certainly true
that Israel will ignore and indeed work actively to
undermine the Resolution just as it has ignored innumerable
other resolutions demanding a halt to settlement
construction or expansion. As one activist tweeted shortly
after its passage, in all likelihood Israel will expand the
seizure of Palestinian land and construction of settlements
just to thumb its nose at the UN (and the departing
President Obama) and to demonstrate the irrelevance of the
UN when it comes to the Occupation.

Observers looking for
historical precedent will find it in the many other Security
Council and General Assembly resolutions that Israel has
ignored over the decades. As many journalists have pointed
out, Obama has had the worst record of any recent President
when it comes to Security Council resolutions criticizing
Israel, vetoing every one that was put for a vote until last
week. In contrast, George W. Bush and his father allowed six
and eleven, respectively, to pass.

It is also true — as
those who want to end this most horrible year on the least
optimistic note can point to — that the Resolution is
grounded in Chapter VI rather than Chapter VII of the UN
Charter, meaning that it has no enforcement mechanism (from
sanctions to the use of force) to compel Israel to implement
it, but rather can only press for negotiations towards that
end.

Nonetheless, I think it is both unfair and inaccurate
to consider the resolution “toothless,” as many critics
are labeling it. There are several reasons why it in fact
has some very deep teeth, if they haven’t been that
exposed yet. Some of these teeth are contained in the
Resolution itself, which once and for all puts to the lie
any possible Israeli claim that it has the legal right to
indefinitely occupy, never mind build settlements upon, any
square meter of the territory it conquered in 1967.
Specifically, Article 1 of the Resolution’s text
(crucially not part of the preamble, which has less direct
legal force) “reaffirms that the establishment by Israel
of settlements in the Palestinian territory occupied since
1967, including East Jerusalem, has no legal validity and
constitutes a flagrant violation under international law and
a major obstacle to the achievement of the two-State
solution and a just, lasting and comprehensive
peace.”

This serves two purposes. First, by
“reaffirming” the illegality of the entire settlement
enterprise it reminds Israel that it has long been told that
the settlements are illegal; thus its half-century policy of
creating “facts on the ground” as a way to normalize the
Occupation and the settlement enterprise it has always been
intended to support, has been for nothing. This statement
will no doubt give impetus to the International Criminal
Court’s ongoing investigation of whether it should take up
the Palestinian call to rule on the settlements. While a
Chapter VI-based resolution doesn’t have enforcement
mechanisms, it does have powerful legal validity, serving
essentially as a judgment of international law in the same
way a Supreme Court decision decides on the ultimate
constitutionality of an American law. The settlements have
now been unequivocally defined as illegal by the highest
authority on earth when it comes to defining and making
international law.

The settlement enterprise is the heart
and raison d’etre of the Occupation, which exists to
perpetuate it. So in judging the entire enterprise to be
illegal the Security Council is, in theory, declaring that
the Occupation built around it is also inherently a
violation of international law. This opens Israel up to
further potential prosecution for crimes committed in the
pursuance of the Occupation.

To be sure, no one imagines
Israel will simply pull up stakes and uproot over half a
million settlers, especially in East Jerusalem and the main
settlement blocks. But the Resolution does hand a huge
amount of negotiating leverage to Palestinians—more in
fact than they have ever had—if and when final status
negotiations begin, and the mandating of tri-monthly reports
by the Security General on Israel’s implementation—or
more likely, lack thereof—of its terms will keep the
pressure publicly and diplomatically on the Israeli
government and strengthen calls to bring the ICC and ICJ
into the mix.

More directly, since the entirety of the
settlements are illegal (the third clause continues that the
Council “will not recognize any changes to the 4 June 1967
lines, including with regard to Jerusalem, other than those
agreed by the parties through negotiations”), Israel will
have to pay a far higher price in land swaps or other
negotiating positions in order to expect Palestinians to
relinquish what have now been clearly recognized legally as
their territory. Suddenly, shared sovereignty in East
Jerusalem and even a larger number of refugees allowed into
Israel proper would seem to be possible in any plausible
peace deal.

In “reiterat[ing] its demand that Israel
immediately and completely cease all settlement activities
in the occupied Palestinian territory, including East
Jerusalem, and that it fully respect all of its legal
obligations in this regard,” the second clause has used
the most forceful language possible. The Security Council
could merely have “called upon” or used similarly less
compulsory language. Instead it has demanded an immediate
and complete halt not only in construction, but
“activities.” Resolution 2334 might not have built-in
mechanisms to enforce it, but it’s clearly far more than a
“recommendation” to Israel, as those who believe Chapter
VI resolutions have no binding authority or enforcement
power would have us believe (as one colleague who
specializes in international law put it to me, “With no
enforcement mechanisms it’s largely symbolic. [At best]
one step forwards, two steps back”).

Since Israel has
already declared its refusal to comply with UNSCR 2334, the
stage is now set for an ICJ and/or ICC option and decision
that would further place Israel in criminal violation of
international law. Moreover, there is little doubt these two
bodies will fail to rule on the systematic war crimes
committed by Israel (and also, quite likely, by Hamas),
which in their routinization and constant repetition have
reached the level of crimes against humanity. It is quite
conceivable that the actions of senior Israeli leaders, and
of Hamas as well, could be determined to be war crimes by
the ICJ, and/or various officials indicted for them by the
ICC, with far-reaching and extremely positive ramifications
for ordinary Palestinians and Israelis alike.

Moreover,
while the Resolution doesn’t call for immediate sanctions
against Israel, the fifth clause “calls upon all States,
bearing in mind paragraph 1 of this resolution, to
distinguish, in their relevant dealings, between the
territory of the State of Israel and the territories
occupied since 1967.” This clearly is an invitation for
boycotting any Israeli products or services that in any way
are tied to the settlements, which in turn gives impetus by
the slowly implemented EU policies to label, isolate, and
punish, if not prohibit, these products. This is not a full
endorsement of the BDS movement by any means, but it’s a
huge step forward for raising international public opinion
and awareness about the settlements and will have a major
impact on their political economy.

Indeed, by “call[ing]
upon both parties to act on the basis of international law,
including international humanitarian law” the seventh
clause reminds everyone that international law is still in
force in the Occupied Territories and thus ongoing
violations by Israel or Hamas will ultimately not go
unpunished, even if the arc of justice remains long.

It is
clear, then, that the Resolution does have teeth, even if
they’re not being immediately bared. But there is also
another equally important consequence of this Resolution,
and that concerns U.S. domestic policy. Specifically, the
Resolution has shown precisely the split in the Democratic
Party and the American Jewish Community, between the true
progressives who will be the backbone of any resurgent
populist party that can speak to the concerns of the
millions of voters who put Trump into power, and those of
the corporate elite, epitomized by Chuck Schumer and Hillary
Clinton and the entire establishment behind the presidential
election catastrophe, who are the main reason for this
present sorry state.

We can expect the “Amen corner”
of the Republican Party to go nuclear over even the
slightest criticism of Israel, just as we can expect the
Jewish establishment to do (as the ZOA’s Morton Klein put
it, “Obama has made it clear that he’s a Jew hating,
anti-Semite”). What we see with the support by Bernie
Sanders and progressive Democrats for the Resolution, and by
the rising tide of truly progressive Jewish organizations
such as Jewish Voice for Peace, IfNotNow, and even J Street
— and of course, Tikkun and its related
communities— is that uncritical, over-the-top support for
Israeli colonialism squares quite well with support for
neoliberal, ultimately anti-poor, and racist policies among
Democrats.

• In other words, the growing bonds between
progressive Jews and the Movement for Black Lives, the
Palestine solidarity movement, Native Americans as
epitomized by Standing Rock, and for other movements
grounded in the ongoing oppression of people of various
colors other than (politically and economically) white is
clearly going to divide the Jewish community—hopefully
permanently—between those who support a Judaism based on
the prophetic principles of righteous anger, justice, and
compassion and those who support the idolatrous Judaism of
money, power, and settlements (as Rabbi Michael Lerner has
long and presciently described them in the pages of
Tikkun magazine as well as in books such as Jewish
Renewal and Embracing
Israel/Palestine).

• What this means is that the
emerging generation of progressive Jews no longer has to
choose between progressive values on the one hand, and the
Jewish community establishment and Israel on the other. The
establishment has made the choice for them, and as we’ve
seen with the emergence of groups like Open Hillel, the new
generation will not fall into the pro-Occupation line. The
coalition of the future, the one that will not only heal
American Judaism (and ultimately, Israeli Judaism as well),
but help restore a progressive politics against the
chauvinism and fascism of Trump and his minions, is now
clear and is for once the same on both the domestic and
foreign policy arenas.

• Security Council Resolution
2334 makes one final point to the world, which has
implications far beyond Israel/Palestine: Human rights and
international law can still matter — if they’re allowed
to function as they were intended. One of the great
tragedies of the postwar era has been the architecture of
the UN Security Council, which included a veto for the five
permanent members of the Security Council that has been
abused horrifically by all of them in order to enable
themselves and/or their allies and clients to get away with
literally mass murder and crimes against humanity (whether
it’s been the U.S. murdering three million Southeast
Asians and more recently the disastrous invasion of Iraq or
supporting the Israeli Occupation, or Russia’s ruinous
wars in Afghanistan and Chechnya and now direct
participation in the slaughter in Syria). Unfortunately, the
veto power of the P5 can only be ended by a vote by the
Security Council, which naturally the P5 would have no
interest in passing.

• The only hope would be to apply
so much pressure from the General Assembly on the major
powers that they feel compelled to allow a change to the P5
veto (either necessitating more than one “no” vote by a
permanent member or getting rid of it entirely) as part of
the inevitable expansion of the permanent membership of the
Council to include major emerging powers like India, Brazil,
Indonesia, and/or South Africa. Such a change in the
architecture of the Security Council would be the single
most important event in diplomatic history since the
creation of the United Nations, for it would finally force
every country on earth equally to face the consequences of
their actions before international law. Israel’s panic at
this latest Resolution has shown us a glimpse of what a
future would be like when those who’ve for so long been
held unaccountable to international law suddenly feel
themselves potentially slipping into its grasp. As the
Putin-Trump era begins to unfold, the countries of the world
would be wise to consider forcing the UN to give the rest of
us a fighting chance before it’s too late.

Mark
LeVine is professor of history at UC Irvine, distinguished
visiting professor at the Center for Middle Eastern Studies,
Lund University, a contributing editor at Tikkun, and
author of numerous books, including the just published
Struggle and Survival in Palestine/Israel, co-edited
with Gershon Shafir (UC
Press).

In response to the challenges facing Scoop and the media industry we’ve instituted an Ethical Paywall to keep the news freely available to the public.
People who use Scoop for work need to be licensed through a ScoopPro subscription under this model, they also get access to exclusive news tools.

2018 has been quite a year for Scoop. We are so thrilled to have successfully met the funding target for the first stage of the ‘Scoop 3.0’ plan raising $36,000. This means we can now proceed with the planning phase for the delivery of this bold vision for a community-owned, participatory, independent newsroom... More>>

Morrison is a masterfully ignorant practitioner who finds himself in the arms of Israeli Prime Minister Benjamin Netanyahu yet still keen to press the idea that international law is being observed. More>>